Fighting abusive litigation against journalists

CPJ and others who defend the rights of journalists are
rightly alarmed when public officials and other powerful figures instigate
baseless criminal prosecutions that can send journalists to prison and force
them to pay heavy fines. A case pending in the Inter-American Court of Human Rights, Fontevecchia & D'Amico vs. Argentina,
shows how abusive civil litigation can be just as bad for journalists as
criminal prosecution. CPJ filed an amicus
curiae brief in the case. A favorable decision by the court would be a step
toward ending the use of meritless civil lawsuits to intimidate and harass the
press.

The court, which
sits in San Jose, Costa Rica, received post-hearing filings in the case Wednesday.
The court likely will issue a decision in early 2012.The case started in the Argentine courts in 1995, when then-President
Carlos Saúl Menem sued journalists Jorge Fontevecchia and Hector D'Amico. Menem
claimed his privacy was violated by two articles published in the respected
news magazine Noticias, where
Fontevecchia and D'Amico worked. The articles raised questions about whether Menem
abused his office to benefit his ex-mistress (herself a congresswoman) and
their son. Menem sought 1.5 million pesos in damages.

In 2001, the Argentine Supreme Court, which Menem had packed
with a majority of his own choosing, awarded Menem 60,000 pesos (US$60,000 in
2001) in damages. Once attorneys' fees, court costs and interest were added,
the amount came to almost 250,000 pesos. D'Amico's wages were garnished for 21
months to pay the award.

Now, Fontevecchia and D'Amico are asking the Inter-American Court
to declare that the award violated their right to free expression under the American
Convention on Human Rights. The convention is a treaty that most countries
in Latin America have signed.

This month, CPJ filed its amicus brief to the Inter-American Court in the Fontevecchia case. Lawyers at Debevoise & Plimpton LLP wrote
the brief for CPJ: Jeremy Feigelson, Natalie Reid, Carolina Henriquez-Schmitz,
María Luisa Romero, Ivona Josipovic, Maria Lapetina, and me. In the brief, CPJ
argues that there should never be liability for truthful reporting on a matter
of public concern involving a public official, and that abusive civil
litigation against journalists for what they report violates the right to free
expression.

Abusive litigation is not about redressing real harm. The
powerful use it to silence journalists who call them to account and to
discourage other journalists from trying. Its hallmarks include:

A plaintiff who is a public official or a powerful public
figure;

Claims based on the defendant's reporting on a matter of
public concern;

Seeking damages far greater than any actual harm the plaintiff
could have suffered;

Suing in a court where the defendant cannot get a fair
hearing, or where it is inconvenient for the defendant to appear.

Menem's lawsuit was abusive. The articles did not invade the
president's privacy, but rather reported facts highly relevant to Menem's
suitability for office. They reported that Menem had given his ex-mistress and
son lavish gifts while he was earning a public official's salary, including
expensive jewels, a US$20,000 monthly stipend, and a US$1 million trust
fund. He also pulled strings to have Paraguay provide asylum to the
congresswoman and child. Menem never disputed the articles' accuracy.

It was already widely known that the boy was Menem's son.
The congresswoman had said so in televised interviews. A best-selling book by a
prominent journalist had reported on the relationship. Menem later acknowledged
that the boy is his son.

Menem's lawsuit was part of a campaign
of litigation he waged against journalists while he was president. He
brought multiple other lawsuits against the parent company of Noticias, helping to drive the company
into bankruptcy.

CPJ's brief points to other examples of abusive litigation against
journalists in the Americas and in countries such as Belarus, China,
Kazakhstan, Liberia and Morocco. In Attacks on the Press in 2009, CPJ
reported that in Brazil, public officials "often file multiple suits on a
single matter and seek disproportionately high damages as a way of straining
the financial resources of their critics." At one time, CPJ 2005 International
Press Freedom Award winner Lúcio Flávio
Pinto, a Brazilian journalist, faced 18 criminal and civil suits by powerful
judges, politicians, and businessmen displeased by his coverage.

Ecuadoran
President Rafael Correa
initiates both criminal and civil actions against journalists who criticize
him, including a $10 million civil defamation suit against two reporters who
investigated allegations that companies belonging to Correa's brother had
obtained $600 million in state contracts.

Abusive litigation keeps journalists from doing their jobs.
Defending against legal charges, civil or criminal, disrupts one's life and
work. Cases often drag on for years. There are mandatory court dates, seemingly
endless meetings with lawyers, legal fees, and the threat of a potentially
devastating damages award or sentence. Former Washington Post editor Ben Bradlee wrote in his memoir, A Good Life, "I'd rather be publicly
whipped than sued for libel, and lose." When courts are biased, as in Menem's
case, journalists often lose even though the charges lack merit.

The Inter-American Court has an opportunity to hold that
abusive litigation to retaliate against journalists for their reporting
violates the right to free expression. But a solution will require more than
one court decision. A defendant should be able to seek early court intervention
to halt an abusive suit before the defendant has suffered irreparable harm to
his life and work while fighting it. If the national courts refuse to act, and
a human rights body such as the Inter-American Commission on Human Rights has
jurisdiction, the defendant should be able to seek precautionary measures. Many
U.S. states, such as California and New York, allow for early dismissal of
"strategic lawsuits against public participation," or SLAPPs, that are brought
to intimidate journalists and others from exercising their right to free
expression. Journalists facing abusive lawsuits elsewhere in the world should
have a similar remedy.